Opinion
No. 608553/2020 MOT. SEQ. : 001 MG
10-19-2020
ROBERT KELLY, Plaintiff, v. CHRIS E. DIAZ and M. DIAZ-CABALLERO, Defendants.
PLTF'S ATTORNEY: GRUENBERG KELLY DELLA DEFTS' ATTORNEY: MARTYN, MARTYN, SMITH & MURRAY
Unpublished Opinion
FINAL RETURN DATE: September 17, 2020
PLTF'S ATTORNEY: GRUENBERG KELLY DELLA
DEFTS' ATTORNEY: MARTYN, MARTYN, SMITH & MURRAY
Hon. Paul J. Baisley, Jr., J.S.C.
Upon the following papers read on this e-filed motion for partial summary judgment: Notice of Motion/ Order to Show Cause and supporting papers filed by plaintiff, on August 31, 2020 ___; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers filed by defendants, on September 9. 2020; Replying Affidavits and supporting papers filed by plaintiff, on September 16, 2020 ___; Other; it is
ORDERED that the motion by plaintiff Robert Kelly for partial summary judgment in his favor on the issue of liability, and to dismiss defendants' first affirmative defense of culpable conduct, is granted; and it is further
ORDERED that a preliminary conference shall be held on November 20, 2020.
This is an action to recover damages for injuries allegedly sustained by plaintiff Robert Kelly as a result of a motor vehicle accident, which occurred on July 27, 2017, on Frowein Road, at or near its intersection with Moriches Middle Island Road, in Moriches, New York. The accident allegedly occurred when a vehicle operated by defendant Chris E. Diaz, and owned by defendant M. Diaz-Caballero, attempted to turn left, crossing into the path of plaintiff s vehicle, causing a collision.
Plaintiff now moves for summary judgment on the issue of defendants' liability, arguing that defendant driver's negligence was the sole proximate cause of the accident. Plaintiff argues that defendant driver violated, inter alia, Vehicle and Traffic Law § 1141 by making a left turn into the path of plaintiff s vehicle, which was traveling with the right-of-way. Plaintiff also seeks, in effect, to dismiss defendants' first affirmative defense of culpable conduct. In support of the motion, plaintiff submits, inter alia, his affidavit and a copy of the police accident report, which bears a stamp that it is "certified." Defendants oppose the motion, arguing that it is premature as no discovery has been completed. Defendants submit the affirmation of their attorney.
A failure to comply with the Vehicle and Traffic Law constitutes negligence as a matter of law (see Kerolle v Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [2d Dept 2019]; Marks v Rieckhoff, 172 A.D.3d 847, 101 N.Y.S.3d 63[2d Dept 2019]; Kaziu v Human Care Servs. for Families & Children, Inc., 167 A.D.3d 588, 90 N.Y.S.3d 66 [2d Dept 2018]). Pursuant to Vehicle and Traffic Law § 1141, a vehicle intending to turn left within an intersection or into an alley, private road, or driveway must yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard (see Ming-Fai Jon v Wager, 165 A.D.3d 1253, 87 N.Y.S.3d 82 [2d Dept 2018]; Giannone v Urdahl, 165 A.D.3d 1062, 86 N.Y.S.3d 562 [2d Dept 2018]; Lebron v Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]). Thus, a driver who attempts to make a left turn when it not reasonably safe to do so is in violation of this provision of the Vehicle and Traffic Law (see Foley v Santucci, 135 A.D.3d 813, 23 N.Y.S.3d 338 [2d Dept 2016]; Krajiniakv Jin YTrading, Inc., 114 A.D.3d 910, 980 N.Y.S.2d 812 [2d Dept 2014]; Ducie v Ippolito, 95 A.D.3d 1067, 944 N.Y.S.2d 275 [2d Dept 2012]).
To establish prima facie entitlement to judgment as a matter of law on the issue of negligence, a plaintiff is no longer required to show freedom from comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Zjkv Lowe, 173 A.D.3d 946, 102N.Y.S.3d713 [2d Dept 2019]; HeardvSchade, 172 A.D.3d 1335, 99 N.Y.S.3d 666 [2d Dept 2019]; Bloechle v Heritage Catering Ltd., 172 A.D.3d 1294, 101 N.Y.S.3d 424 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Marks v Rieckhoff, supra). Although the operator of a vehicle with the right-of-way is entitled to assume that other drivers will obey traffic laws requiring them to yield (see Richardson v Cablevision Sys. Corp., 173 A.D.3d 1083, 104 N.Y.S.3d 655 [2d Dept 2019]; JeongSook Lee-Son v Doe, 170 A.D.3d 973, 96 N.Y.S.3d 302 [2d Dept 2019]; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 2019]), the driver with the right-of-way also has a duty to keep a proper lookout to avoid collisions with other vehicles (see Matias v Bello, 165 A.D.3d 642, 84 N.Y.S.3d 551 [2d Dept 2018]; Mir on v Pappas, 161 A.D.3d 1063, 77 N.Y.S.3d 163 [2d Dept 2018]; Mark v New York City Tr. Autk, 150 A.D.3d 980, 55 N.Y.S.3d 128 [2d Dept 2017]). Nonetheless, a driver with the right-of-way who only has seconds to react to a vehicle which has failed to yield the right-of-way is not comparatively negligent for failing to avoid the collision (see Jeong Sook Lee-Son v Doe, supra; Enrique v Joseph, supra; Rohn v Aly, 167 A.D.3d 1054,91 N.Y.S.3d256 [2d Dept 2018]).
Plaintiff has established his prima facie entitlement to summary judgment on the issue of liability by demonstrating that defendant driver was negligent, as he violated Vehicle and Traffic Law § 1141 (see Brodney v Picinic, 172 A.D.3d 673, 99 N.Y.S.3d 399 [2d Dept 2019]; Ming-Fai Jon v Wager, supra; Giannone v Urdahl, supra; YuMeiLiuv Weihong Liu, 163 A.D.3d 611, 81 N.Y.S.3d 75 [2d Dept 2018]; Smith v Fuentes, 158 A.D.3d 731, 68 N.Y.S.3d 739 [2d Dept 2018]). Plaintiff, by his affidavit, states that he was the seat-belted driver of his vehicle traveling westbound on Frowein Road, approaching its intersection with Moriches Middle Island Road. Plaintiff avers that as he approached the intersection, his direction of travel was governed by a traffic signal, and that it was illuminated green. Plaintiff states that he began to proceed straight through the intersection when suddenly, without warning, defendant driver attempted to make a left turn from eastbound Frowein Road onto northbound Moriches Middle Island Road, and struck his vehicle. Plaintiff states that the accident happened as defendant driver's vehicle was almost adjacent to his vehicle, leaving him no time to react or take evasive action. Plaintiff has also established his prima facie entitlement to summary judgment as to defendant M. Diaz-Caballero. Vehicle and Traffic Law § 388 provides that an owner of a motor vehicle is vicariously liable for the negligence of those whom the owner allows to drive his or her vehicle (see Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 N.Y.3d 172, 811 N.Y.S.2d 302 [2006]; Jung v Glover, 169 A.D.3d 782, 93 N.Y.S.3d 390 [2d Dept 2019]).
Plaintiff having established prima facie entitlement to summary judgment, the burden now shifts to defendants to submit evidentiary proof in admissible form which raises a triable issue of fact (see Zuckerman v City of New York, supra; Yu Mei Liu v Weihong Liu, supra). In opposition, defendants submit the affirmation of their attorney, alleging that further discovery is necessary to determine whether triable issues of fact exist as to the happening of the accident. However, the affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). Further, as defendant driver himself has personal knowledge of the relevant facts underlying the accident, the purported need to conduct discovery does not warrant denial of the motion (see Jobson v SMLivery, Inc. 175 A.D.3d 1510, 109 N.Y.S.3d 376 [2d Dept 2019]; Pierre v Demoura, 148 A.D.3d 736, 48 N.Y.S.3d 260 [2d Dept 2017]). The ''mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered" by further discovery is an insufficient basis for denying the motion (Lopez v WS Distrib. Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516, 517 [2d Dept 2006]; see Castro v Rodriguez, 176 A.D.3d 1031, 111 N.Y.S.3d 55 [2d Dept 2019]; Stubenhaus v City of New York, 170 A.D.3d 1064, 96 N.Y.S.3d 662 [2d Dept 2019]). Thus, defendants' submissions fail to rebut plaintiffs prima facie showing that defendant driver's negligence was the sole proximate cause of the accident (see Rodriguez v City of New York, supra; Zuckerman v City of New York, supra).
As to the branch of plaintiff s motion seeking to dismiss defendants' affirmative defense of comparative negligence, when moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law" (Bank of N.Y.v Penalver, 125 A.D.3d 796, 797, 1 N.Y.S.3d 825 [2d Dept 2015]; South Point, Inc. v Redman, 94 A.D.3d 1086, 1087, 943 N.Y.S.2d 543 [2d Dept 2012]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference . . . [and] if there is any doubt as to the availability of a defense, it should not be dismissed" (Fireman's Fund Ins. Co. v Farrell, 57 A.D.3d 721, 723, 869 N.Y.S.2d 597 [2d Dept 2008]; see Greco v Christoffersen, 70 A.D.3d 769, 896 N.Y.S.2d 363 [2d Dept 2010]).
While a plaintiff is no longer required to show freedom from comparative fault (see Rodriguez v City of New York, supra; Bloechle v Heritage Catering, Ltd., supra; Catanzaro v Edery, supra; Marks v Rieckhoff supra; Auguste v Jeter, supra), the issue of a plaintiff s comparative negligence may be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]). Plaintiff has established his prima facie entitlement by demonstrating that he was traveling with the right-of-way and that the accident happened so quickly due to the action of defendant driver, he was unable to take evasive maneuvers to avoid the collision (see Richardson v Cablevision Sys. Corp., supra; Jeong Sook Lee-Son v Doe, supra). In opposition, defendants have failed to raise a triable issue of fact with respect to plaintiffs comparative negligence. Therefore, plaintiffs application to dismiss defendant's affirmative defense is granted.
Accordingly, the motion by plaintiff for partial summary judgment in his favor on the issue of liability, and to dismiss defendant's first affirmative defense, is granted.